Excerpt:indian penal code (act xlv of 1860), sections 114, 447-criminal trespass-incitement by accused-presence of the accused at the time of the commission of the offence-liability of the accused for criminal trespass.;section 537, criminal procedure code, covers any irregularity in the mode in which a magistrate has drawn up a judgment.;persons who incite others to commit criminal trespass under section 447, indian penal code, and are present when the trespass is committed, though they do not themselves commit it, are guilty of criminal trespass in virtue of the provisions of section 114, indian penal code.;barendra kumar ghosh v. the king-emptror (1924) l.r. 52 i.a. 40, s.c. 27 bom. l.r. 148 followed.;emperor v. ranchhod sursang (1924) 26 bom l.r. 549 referred to. - .....the case, as is shown by his having acquitted the accused on the charge under section 434, indian penal code. he also says, 'the magistrate's findings of fact are fully justified by the evidence.' and, although ordinarily that is not a sufficient manner of an appellate court expressing its agreement with the judgment of the court below, yet regard must be had to the circumstances. in the present case there is the fact that there is no dispute as to there having been some ploughing of a bandh, the only question was, whether it was done by the accused or by the complainant himself. that is clear from the magistrate's judgment. therefore, it was only a case of considering in appeal whether the evidence did justify the conclusion that the accused persons were responsible for that ploughing,.....

Judgment:

Fawcett, J.

1. The main point taken in this application is that the learned District Magistrate has not written, a legal judgment having regard to Sections 367 and 424, Criminal Procedure Code. No doubt, that judgment is very brief, and does not state the points for determination, and the reasons for a finding on each point specifically in the manner contemplated by those sections. But it is not a case where he simply confirms the conviction without giving any reason at all. He has in fact gone into the case, as is shown by his having acquitted the accused on the charge under Section 434, Indian Penal Code. He also says, 'The Magistrate's findings of fact are fully justified by the evidence.' And, although ordinarily that is not a sufficient manner of an appellate Court expressing its agreement with the judgment of the Court below, yet regard must be had to the circumstances. In the present case there is the fact that there is no dispute as to there having been some ploughing of a Bandh, The only question was, whether it was done by the accused or by the complainant himself. That is clear from the Magistrate's judgment. Therefore, it was only a case of considering in appeal whether the evidence did justify the conclusion that the accused persons were responsible for that ploughing, and I am not prepared to say, in the circumstances of this case,' that there is what has been called an 'absence' of a judgment.' It seems to me it is merely a case where there is some irregularity in the way in which the Magistrate has drawn up his judgment, and that it can legitimately be brought within the provisions of Section 537, Criminal Procedure Code.

2. The only other point is that the conviction of the petitioners, accused Nos. 1 and 2, is not justified on the evidence. It is said that the evidence is that they did not themselves enter upon the land, but merely incited others to do this, and were present when it was done. It is argued that they cannot, in those circumstances, be convicted of the actual offence of committing criminal trespass. That is an old contention, but it has been entirely upset by the Privy Council decision in Barendra Kumar Ghosh v. The King Emperor and the judgment of this Court in Emperor v. Ranchhod Sursang : AIR1924Bom502 It is pointed out by the Privy Council in Barendra Kumar Ghosh v. The King-Emperor, at p. 159, that Section 114, Indian Penal Code, is not merely punitory, but it constitutes and makes the abetment with circumstances of aggravation the crime itself ; and that is, in fact, plain from the wording of Section 114, Indian Penal Code. Therefore, in my opinion, there is nothing illegal in the petitioners having been convicted under Section 447, Indian Penal Code. I would dismiss the application.